William and Mary Law Review
Sharon B. Jacobs, Administrative Dissents, 59 Wm. & Mary L. Rev. 541 (2017), available at https://scholar.law.colorado.edu/faculty-articles/833.
Commissioners, like judges, dissent. They do so at length, with vigor, and with persistence. Yet while separate judicial decisions are the subject of a rich literature, their administrative counterparts have long languished in obscurity. A closer look is warranted, however, because studying administrative dissent can enhance our understanding of internal agency operations as well as the relationships between agencies and other actors. This Article presents the results of an original review of separate statements at the Federal Energy Regulatory Commission and the Nuclear Regulatory Commission dating back four decades. It uses these findings to move beyond two common generalizations about administrative commissions: that commissions act largely by consensus and that the myriad independent commissions across the federal bureaucracy are essentially homogenous. This Article also tells a larger institutional story about the utility of separate statements in constraining bureaucratic discretion. Commissioner dissents and concurrences ameliorate the principal-agent problem inherent in delegations of legislative authority by providing both Congress and the President with better information about the preferences and behavior of individual commissioners. Dissents and concurrences can also improve decisionmaking quality within the agency, thereby minimizing the risk of arbitrariness. An emerging judicial doctrine of “deliberation-forcing” as a component of “arbitrary and capricious” review can enhance this effect, and this Article proposes that similar “deliberation-forcing” inform judicial review of agency interpretations of law under Chevron. This Article concludes by proposing a framework in which to assess the costs and benefits of separate statements and suggesting avenues for further research.
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